Part 3 — CHAPTER IV. GAMING HOUSES. (continued 2)

Section 20 of the principal Act is repealed, thus extending that Act to Scotland.

By section 3, when any letter, telegram, circular, placard, handbill, card or advertisement is sent, exhibited or published,

(1.) Whereby it is made to appear that any person, either in the United Kingdom or elsewhere, will, on application, give information or advice for the purpose of, or with respect to, any bet or wager on any such event or contingency as is mentioned in the principal Act; or will make on behalf of any other person any such bet or wager as is mentioned in the principal Act; or

(2.) With intent to induce any person to apply to any house, office, room or place, or to any person with the view of obtaining any information or advice for the purpose of any such bet or wager, or with respect to any such event or contingency as is mentioned in the principal Act; or

(3.) Inviting any person to make or take any share in or in connection with any such bet or wager.

Every person sending, exhibiting or publishing, or causing the same to be sent, exhibited or published, shall be subject to the penalties provided in section 7 of the principal Act with respect to offences under that section.

Tipsters’ business not prohibited.

What the latter statute prohibits people doing is, not advertising themselves as ready to give information or “tips” with respect to ordinary betting transactions, but only with respect to betting carried on in any office or place used for the purpose of illegal betting within the principal Act.

Thus in Cox v. Andrews^[397] defendant issued advertisements 194in the Licensed Victuallers’ Gazette and Hotel Courier that Centaur would, for half-a-crown in stamps, give information and advice with respect to the probable winners of races in the ensuing week. Centaur was the defendant’s regular correspondent with respect to horse-races and information relating thereto. There was no address given at which persons desiring such information should apply. Held, that the advertisement, contemplated in 37 Vict., c. 15, referred to bets made in any office, house or place as referred to in the principal Act, and not to advice with respect to ordinary betting; the Act was to be read with the principal Act, and the only kind of betting prohibited by the latter was that specified in section 1. Of course, this being the purport of the statute, all the cases cited above as to what is a “place,” etc., and particularly as to the kind of betting prohibited by the Statute 16 & 17 Vict., c. 119, apply to the construction of the supplementary as well as of the principal Act. |Betting clubs.| It is clear, therefore, that the ordinary betting clubs so long as they themselves are not within the Act, may advertise for members. |Agents.| So also the ordinary commission agent, who does business at these clubs, may advertise for clients.

Foreign houses.

Now that the bookmaker, having first been driven out of England has also been banished from Scotland, he seems from the advertisements in the papers to have betaken himself to Boulogne. Considering that any house he may set up there is not within the Act, it follows that these advertisements are perfectly legal.

Betting and Loans (Infants) Act.

We have now to notice an Act which has recently been passed to prohibit the sending of advertisements or invitations to bet to persons under age. The Betting and Loans (Infants) Act, 55 Vict., c. 4, s. 1, provides: (1) “If any one for the purpose of earning commission, reward, or other profit, sends or causes to be sent to a person whom he knows to be an infant, any circular, notice, advertisement, letters, telegram or other document which invites, or may reasonably be implied to invite, the person receiving it to make any bet or wager, or to enter into or take any share or interest in any betting or wagering transaction, or to apply to any 195person or at any place with a view to obtaining information or advice for the purpose of any bet or wager, or for information as to any race, fight, game, sport, or other contingency upon which betting or wagering is usually carried on, he shall be guilty of a misdemeanour....” The penalties imposed are, if convicted on indictment, three months’ imprisonment, with or without hard labour, and a fine of £100; on summary conviction, one month and £20 fine.

Sub-section 2. “If any such circular, notice, advertisement, letter, telegram or other document, as in this section mentioned, names or refers to any one as a person to whom any payment may be made, or from whom information may be obtained for the purpose of or in relation to betting or wagering, the person so named or referred to shall be deemed to have sent, or caused to be sent, such document as aforesaid, unless he proves that he had not consented to be so named, and that he was not in any way party to, and was wholly ignorant of, the sending of such document.”

By section 3: If any such circular, &c., is sent “to any person at any university, college, school, or other place of education, and such person is an infant, the person sending it, or causing it to be sent, shall be deemed to have known that such person was an infant, unless he proves that he had reasonable grounds for believing such person to be of full age.”

By section 6: “In any proceeding against any person under this Act, such person and his wife, or husband, as the case may be, may, if such person thinks fit, be called, sworn, examined, and cross-examined as an ordinary witness in the case.” Scotland is not excluded from the Act.

Welshing.

The oft-disputed question of whether “welshing” is a penal offence has been set at rest by Reg. v. Buckmaster.^[398] It was there held that it amounted to larceny by trick, on the ground that there being no intention on the prisoner’s part when he took the prosecutor’s money of paying the prosecutor if he won his bet, there was no real contract 196between the two which could pass the property in the money paid by the prosecutor to the prisoner.

PROCEDURE.

Procedure.

We now come to treat of the procedure whereby the laws against gaming and betting houses can be enforced. It will be observed that it differs in some important respects from the ordinary procedure in criminal cases, in being more drastic and to a great extent less considerate to the liberty of the subject owing to the great difficulty of detecting the offences and the facility with which the law might be evaded if ordinary forms had to be observed.

The procedure is slightly different in the case of gaming and betting houses, so they must be treated separately.

Gaming houses.

I. As to gaming houses, by 25 George II., c. 36, ss. 5 and 6, it was provided that if any two inhabitants of a parish should give notice to a constable of any person keeping a gaming house, the constable should take such persons before a justice of the peace; that the justice should, on the sworn information of such persons, bind them over to prosecute at the Assizes or Sessions, and issue a warrant for the arrest of the person accused and bind him over to answer any indictment that might be found against him. It seems that the section leaves the magistrate no discretion as to granting a warrant^[399]; but as it only applies to proceedings preliminary to indictments it is, in practice, superseded by the procedure prescribed in the more modern Statutes. This procedure is different according as the house is situated in the Metropolis or out of that district. |In the Metropolis.| In the Metropolis, by 2 & 3 Vict. c. 47, section 48, power was given to the Commissioners of the Police Force, on the report of any superintendent, that there were good grounds for believing that any house within the district was used as a common gaming house, and on two witnesses making oath before a magistrate, to empower the superintendent and other constables to enter the house, arrest 197all persons found therein,^[400] and destroy all tables, instruments of gaming, money, and securities for money. By 8 & 9 Vict., c. 109, section 6, the Commissioners are invested with the same powers, except that the necessity of two witnesses making oath before a magistrate is dispensed with; and the power to seize (and not destroy) instruments of gaming is given.

This latter section does not empower Metropolitan magistrates to issue such warrant as the Betting House Act does.

In Ireland.

By section 24 of the latter Act, Metropolis in Ireland means Dublin.

By section 7, special power is conferred on such superintendent or constables to search the whole house where he shall suspect there are instruments of gaming concealed, and any person found therein,^[400] and to seize all tables and instruments of gaming which he shall so find.

By section 8, magistrates before whom persons are brought, having been arrested in a gaming house, may order all such tables and instruments of gaming to be destroyed.

Out of the Metropolis.

In the case of houses out of the Metropolis, justices of the peace may, on information on oath that there is reason to suspect any house is used as a gaming house, issue a warrant in the form given in the schedule to the Act to empower officers to enter such house by force, and arrest all persons found therein. This section does not empower constables to seize or destroy instruments of gaming. |Form of warrant.| An important point to notice about the form of the warrant is that it is directed only against a particular house, the individuals who may be arrested need not be named or described. This is an important departure from ordinary procedure, as generally a warrant for an arrest is bad if the name of the person to be arrested or some description of him do not appear on the face 198of the warrant, as was decided in the “general warrant” cases in George III.’s reign.

By section 5 it is provided that it shall not be necessary in support of any information, for keeping a gaming house, to prove that persons found playing therein were playing for money or stakes.^[401]

The power of ordering the destruction of instruments of gaming conferred by section 8 seems to apply out of the Metropolis. The words are “warrant or order.”

It does not appear that police magistrates in the Metropolis have the power of issuing warrants in the form above described, as the section expressly excludes the metropolitan district.

N.B.—In any questions arising under this Act, reference should be made to the cases which are noted under the corresponding portions of the Betting House Act, as the wording of the two statutes is in many cases similar.

Evidence.

There are also important provisions in 17 & 18 Vict., c. 38, with respect to the power of a magistrate to compel witnesses to give evidence, under section 5 and section 6. All persons apprehended under the powers contained in section 3 and section 6 of 8 & 9 Vict., c. 109, may be required to give evidence touching any unlawful gambling or obstruction of officers in the house, notwithstanding that such evidence may tend to criminate the witness. Such person refusing to be sworn may be dealt with as any ordinary witness so refusing. But every such person who has made full discovery of all the facts he knows is entitled to a certificate from the justices which frees him from criminal proceedings in respect of matters on which he has been examined.

Levying and application of penalties.

By section 7 penalties and costs may be levied by distress, and by section 8 half the penalty is to be paid in aid of the poor-rate of the parish in which the offence is committed, and half to the person laying the information.

In Wray v. Ellis^[402] a question arose as to whether this section applied to penalties paid in the Metropolis. By the 199Statute 2 & 3 Vict., c. 71, section 47, it is provided that all fines paid in London Police Courts shall be paid to the Receiver of Police. The question was whether the enactment was superseded by section 8 of 17 & 18 Vict., c. 38. The Court held that it was not; and that in the latter section an implied exception was contained in the case of penalties paid in the Metropolis, and that therefore the Receiver was entitled.

Neglect to prosecute.

By section 9, if the person who shall have laid the information neglects to prosecute, the justices may authorise some other person to proceed.

Appeal.

Any person convicted summarily under this Act may appeal to the Quarter Sessions on entering into recognisances and finding sureties within 48 hours of his conviction.

No certiorari.

By section 11 no information under the Act is to be removed by certiorari into the Queen’s Bench.

Action against officers.

In the case of actions brought against officers for any trespass or other wrongful proceeding done or committed in the execution of the Act, it is provided (section 13) that no action shall be brought if sufficient tender of amends shall have been made before action brought, and by section 14 no action or other proceeding shall be brought, unless one month’s notice in writing shall have been given to the intended defendant, nor unless the action shall have been commenced within three months of the act or omission complained of.

In Blake v. Beach^[403] it was contended for the defendant that by section 14 a month’s notice of the information ought to have been given to him, but this point was abandoned by Counsel as untenable, when the case came before the Divisional Court; and was also said by the Court to have been “founded on an obvious mistake!”

Vexatious indictments.

Keeping a gambling house is one of the offences mentioned in the Vexatious Indictments Act, 22 & 23 Vict., c. 17, which by section 1 provides that no bill of indictment for any of the offences named shall be presented to the Grand Jury unless the prosecutor or person preferring such indictment 200has been bound by recognisance to prosecute or give evidence; though, by section 2, if the justices decline to commit for trial, prosecutors may require them to bind him over to prosecute.

Betting houses.

The procedure in the case of betting houses is to a certain extent similar to that in the case of gaming houses, except that the power of magistrates to issue a warrant in the form already described is not limited to places out of the metropolitan district.

By section 11 of 16 & 17 Vict., c. 119, justices of the peace are empowered, on information on oath that any house suspected of being used as a betting house, |Search warrant.| to issue a warrant authorising the forcible entry into any such house, and the arrest and searching of all persons found therein, and also the seizure of all lists and cards and other documents relating to racing or betting found in such house. Such warrant may be in the form given in the schedule to 8 & 9 Vict., c. 109.

In Anderson v. Hume^[404] it was decided (1) that this section empowers the search of licensed houses as well as others, although they are subject in some respects to special regulations; (2) that the power to arrest persons found therein is not confined to persons found engaged in gaming.

In Blake v. Beach^[405] a warrant was issued under section 11 of this Act for the search of a house suspected, as was stated in the warrant, of being used as a common gaming house within 8 & 9 Vict., c. 109. Under this warrant defendant and other persons found therein were arrested. Defendant was afterwards charged under section 3 of 16 & 17 Vict., c. 119, with keeping a betting house. Ample evidence was given that defendant was manager of the place, and that it was used for betting purposes, but this charge was made without any fresh information being laid against defendant. |Whether fresh information necessary.| It was objected on his behalf that as the information on which the warrant was granted was laid under 8 & 9 Vict., c. 109, a fresh information ought to have been issued before he could be charged under the Statute of 16 & 17 Vict., c. 119.

201The Court differed, Field, J., holding that no fresh information was necessary. In this case a specific charge was made against the accused sufficient to give the magistrates jurisdiction. The information provided for by section 11 took away the necessity of any further information. Further, according to the current of modern authority, when a man is before a magistrate who has jurisdiction as to time and place, no further information is necessary before bringing any fresh charge against him, though it might be proper to adjourn the hearing.

The rest of the Court, Cleasby and Grove, JJ., differed. In the ordinary course a charge is preceded by information or summons. In this case the defendant was brought up on a charge different from that contained in the information. In a penal matter the charge ought to be comprised within the information. There is nothing in section 11 to dispense with the regular information or summons; it only enables persons to be brought before the magistrates so as to know who is to be charged. The conviction was therefore quashed.^[406]

The information may be laid before one justice only.^[407]

Where an information under the Betting House Act charged defendant with having kept a house for betting purposes on the 5th October “and divers other days.” The evidence proved the offence alleged on the 8th of November only. Held, that under section 9 of 11 & 12 Vict., c. 113, the variance was immaterial.^[408]

For an instance in which a warrant was, under this section, issued in the Metropolis, see Clarke v. Wright (quoted above).

Powers of Commissioners of Police in Metropolis.

Section 12 confers the same powers on the Commissioners of Police in the Metropolis, on the report in writing of any superintendent, to authorise such superintendent, with other constables, to enter suspected betting houses, as is contained in the Gaming House Act; to take into custody all persons 202found therein,^[409] and to seize all lists, cards, or other documents relating to racing or betting.

The Act also contains provisions similar to those of the Gaming House Act, with respect to appeals to Quarter Sessions, certiorari, and limitations of action (see above, p. 199).

GAMING IN LICENSED PREMISES.

Gaming.

By 35 and 36 Vict., c 94, if any licensed person (1) suffers any gaming or any unlawful game to be carried on on his premises, (2) opens, uses, or suffers his house to be opened or used in contravention of 16 & 17 Vict., c. 119, he is liable for the first offence to a penalty of £10, and for every subsequent offence to a penalty of £20; the conviction to be endorsed on such person’s license.

I. Gaming. Knowledge of owner necessary.

The following cases go to show how far actual or constructive knowledge on the part of the owner of the premises is necessary.

In Redgate v. Haynes,^[410] defendant was the landlady of an hotel at Epsom; witnesses proved that three men and a horse-trainer, a jockey, and an inhabitant of Newmarket, were playing cards for money in the sitting room from 11 p.m. The defendant retired to bed, leaving the hall porter in charge of the house. The latter closed the door and retired to his chair in the parlour, at the farthest end of the house. The usual place for such chair was in the hall, and it was his duty to wait upon his guests in the sitting room. From the Judgment delivered the following rules may be extracted: (1) The defendant would not be liable merely for the fact of gaming unless she knew of it or connived at it. (2) In her absence she was responsible for the conduct of those she left in charge. (3) The fact of the porter moving his chair out of the way was some evidence that he suffered or connived at what was going on, but the judges declined to say whether they would have drawn the same conclusion.

203In Bosley v. Davies^[411] there was evidence that persons were playing at cards in the house, but none that the manageress or the attendants knew that gaming was on. One of the players deposed that all the brandies and sodas were served before the playing commenced. The case was sent back to the magistrates with an intimation of opinion from the Court that some knowledge, actual or constructive, or connivance on the part of the owner was necessary.

In Somerset v. Hart,^[412] defendant was keeper of licensed premises. On market day when the inn was very full, two men began gambling with a mug and three nuts. It was proved that the potman knew of gambling, but took no steps to prevent it, nor did he communicate it to the landlord, who was engaged serving customers at the bar. Coleridge, C.J., in giving judgment, distinguished the case of Redgate v. Haynes,^[413] on the ground that there the magistrates thought there was evidence of connivance. Mullins v. Collins was a case of serving a constable with liquor while on duty; but there the liquor was served by a woman who was probably defendant’s wife, to whom the management of the business had been entrusted. Here the magistrates find that there was no evidence that defendant had actual knowledge of the gaming, or that the potman communicated it to him, or that he wilfully shut his eyes to what was going on. All the cases show that there must be something in the nature of connivance. See, too, ante p. 175.

The case of Bond v. Evans,^[414] carried the matter somewhat further. The defendant, a licensed victualler, had a skittle alley attached to his premises, the management of which he entrusted to a servant. It was proved that cards were played for money in the alley, and that the servant was cognisant of the fact, though the defendant was not. It was held that, the landlord of licensed premises “suffered” gaming to be carried on when there was connivance at it, either on his own part or on the part of any servant in charge of that part of the house where gaming went on.

What is gaming within the Act?

204To be within the act there must be either gaming for money or playing some unlawful game. Thus in Reg. v. Ashton^[415] (a case within 9 Geo. IV., c. 61, section 21) it was held that playing at dominoes, but not for money, was lawful, dominoes not being an unlawful game.

In Danford v. Taylor,^[416] the game of ten-pins, the losers standing beer all round, was held to be within the Act.

In Bew v. Harston,^[417] a licensed person allowed to be played on his premises a game called “puff and dart,” the object of which is to hit a mark on a target with a small dart blown through a tube. The players each contributed 2d. as entrance money, the total sum so contributed being applied to the purchase of a rabbit as a prize for the winners. Held that he was rightly convicted of gaming on licensed premises. Cockburn, C.J., doubted whether the term “gaming” did not apply to games of chance alone.

Except for the doubts thus expressed in the last case, the authorities seemed to be all one way, that playing for money, even at a game exclusively of skill, is “gaming”: this view has since been adopted in Dyson v. Mason.^[418]

Card playing.

In Patten v. Rymer^[419] an innkeeper, whose license forbade him to suffer gaming on his premises, was held liable under 9 George IV., c. 61, section 21, for playing cards for money with his friends.

Although 37 & 38 Vict., c. 49, permits licensed persons to serve liquors to private friends after hours, there is nothing in that act which justifies him in allowing the friends in his house to play cards for money.^[420] Section 25 of the Act of 1872, which imposes a penalty on persons found in licensed premises during prohibited hours for the purpose of being served with liquor, does not extend to cases where they are only playing cards or other games.^[421]

Unlawful games.

As to what are unlawful games, see ante p. 152.

Money lent by publican for gaming cannot be recovered.

In Foot v. Baker^[422] it was held that money lent by a publican 205for the purpose of gaming in his premises contrary to his license cannot be recovered.

II. Using the house for betting.

Reference should be made to the notes on “What is Illegal Betting” in the chapter on Betting Houses. It would seem, therefore, that there is no objection to a publican keeping a room in his house for other people to bet in, in the same way as betting is practised at the Clubs; but he must not bet with his customers himself, nor allow anyone else to use the house for the purpose of betting with all comers.

In Sim v. Page^[423] it was held that licensed victuallers are still liable to be proceeded against, under the Gaming and Betting House Acts, notwithstanding this Statute see section 59.

BETTING IN A PUBLIC PLACE.

By 5 George IV., c. 83, section 4, any person playing or betting in any street, road, highway or other open or public place, at or with any table or instrument of gaming, at any game or pretended game of chance, shall be deemed a rogue and vagabond.

Instruments of gaming.

In Watson v. Martin^[424] it was held that tossing for halfpence was not within the statute. To supplement this defect in the statute, by 31 & 32 Vict., c. 52, section 3, the words “coin, card, token or other article used as an instrument or means of such wagering or gaming,” are added so as to include pitch and toss. But in Hirst v. Molesbury^[425] it was held that the latter statute did not apply to a deposit of money by a person in the hands of another, in a public place, to abide the event of a wager.

In Tollett v. Thomas,^[426] defendant was on a race course, and had a machine called a pari-mutuel. This machine had on it numbers, beside each of which were three holes, and behind these holes were figures which by a mechanical contrivance were made to shift on the turning of a key, so that any number from 0 to 999 would be exhibited behind these holes. 206On the top of the machine was the word “total,” and beside it were holes in which could be exhibited in similar manner figures shifting on the turn of a key. The defendant appropriated each of these numbers to designate a horse about to run in a race. Any person who wished to bet on a particular horse, deposited with the appellants half-a-crown, and received a ticket with the number of the horse. The defendants then by a turn of the key altered the figures, increasing the sum indicated alongside that number by one, and the same turn of the key increased the figure beside “total” by one.

After the race had been run, the holders of tickets with the numbers of the winning horse had divided among them all the half-crowns deposited, less 10 per cent. which defendants retained as their profit.

Held (1) That this was an instrument of wagering or gaming within the Act. (2) That as the amount to be won depended on an event other than the issue of the race (i.e., it varied according to the number of persons who backed a particular horse), it was a game of chance. It was like a lottery, which (semble at p. 514) would be a game of chance within the act.

It was left open whether a horse-race was a game of chance (but see post as to games of chance).

What is a public place?

An omnibus^[427] is a public place at any rate for some purposes.

In Turnbull v. Appleton,^[428] colliers and their families were allowed by a company to use a large field of 30 acres for recreation. Strangers were also allowed to go and play there. On one occasion defendant played pitch and toss in the field. Held that this field was a place to which the public had access.

It has lately been decided that a railway carriage is a public place while in the course of a journey.^[429]

So, too, a race course. See Tollett v. Thomas (ubi sup.).

36 & 37 Vict., c. 94.

207The Statute 36 & 37 Vict., c. 94, repeals the Act of 1868 and provides “that any person playing or betting, by way of wagering or gaming, in any street, road, highway or other open and public place, or in any open place to which they have or are permitted to have access, at or with any table or instrument of gaming, or any coin, card, token or other article used as an instrument or means of such wagering or gaming, at any game or pretended game of chance, shall be deemed a rogue and vagabond” within the meaning of the Act of George IV., and punished under the provisions of that Act (i.e., three months’ imprisonment), or may be fined 40s. for a first offence and £5 for a subsequent offence.

It would seem that this statute is wide enough to take in a case like Doggett v. Catterns^[430]—where it will be remembered a man had a table in Hyde Park for betting purposes.

Games of chance.

We have now to consider what really is comprehended in the term “game of chance” as used in this Statute. The writers are not aware that the exact term has been used in any other statute, though the converse expression, “game of skill,” is to be found in the Act of 1845. It is, however, to be found in various cases such as Turpin v. Jenks^[431] and Dyson v. Mason^[432] (see Table of Cases). In Tollett v. Thomas (ubi sup.) that a pari-mutuel was an instrument of wagering on a game of chance, although the owner was not betting himself with the depositors on the ground, that the amount which each depositor could win was a matter of uncertainty, until it was finally ascertained how many in the total had backed such depositor’s horse; the result being entirely independent of his skill.

It is submitted that the true test of whether or not a game is a game of chance, including in the term a game partially of skill and partially of chance is, whether according to the rules or scheme of the game any material part of or step in the game is determined by chance. But the term “chance” must be used in a more definite and limited sense than mere uncertainty, or even the possibility of uneven luck. 208The idea of chance seems to be the same as that of lot, e.g., the dealing of cards, the throwing of dice, or the spinning of a teetotum. Uncertainty is the essence of every game even if of skill; and frequently inequality of luck is an important factor. Thus in billiards or pool every stroke is an effort of skill both as to the stroke itself and the placing of the balls for next stroke; and probably (with ordinary players) few games of skill are more influenced by luck; yet in Dyson v. Mason, billiards was assumed on all sides to be a game of skill. Again, the design and scheme of a horse-race is a contest involving a trial of the speed and staying power of the horses, and the skill and nerve of the jockeys; though doubtless attended by uncertainties which need no enlargement. Still, what was assumed in Dyson v. Mason supports the view that mere uncertainty is not tantamount to chance; and if so, the question which was reserved in Tollett v. Thomas, viz.: whether or not horse-racing was a game of chance must be answered in the negative.

In Metropolis.

30 & 31 Vict., c. 134, section 24, provides that three or more persons assembled in the streets in the Metropolis for betting purposes may be fined £5 as for an obstruction.

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